JP Morgan Chase v. Donald Gwinn

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

JP MORGAN CHASE, FILED
Employer Below, Petitioner April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 24-ICA-402 (JCN: 2016001947) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

DONALD GWINN,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner JP Morgan Chase (“Chase”) appeals the September 4, 2024, order of the
Workers’ Compensation Board of Review (“Board”). Respondent Donald Gwinn filed a
response.1 Chase did not reply. The issue on appeal is whether the Board erred in reversing
the claim administrator’s orders, which denied examinations with Rajesh V. Patel, M.D.,
on January 4, 2021, June 21, 2021, August 30, 2021, October 27, 2021, October 31, 2022,
and October 16, 2023; and denied an x-ray of the lumbar spine.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On July 16, 2015, while employed by Chase, Mr. Gwinn sustained occupational
injuries to his left ankle, left knee, left hip, left arm, left-sided ribs, and head when he
tripped and fell down some stairs. A lumbar spine x-ray was performed on July 22, 2015,
revealing bilateral pars defects at L5 with grade 1 anterolisthesis of L5 on S1, and no
fracture. The claim administrator issued an order dated July 28, 2015, holding the claim
compensable for a left ankle sprain, left knee sprain, left hip sprain, left wrist sprain,
unspecified head injury, and lumbar sprain/strain.

Mr. Gwinn underwent a lumbar spine MRI on August 20, 2015, revealing bilateral
pars defects at L5 grade I anterior spondylolisthesis of L5 relative to S1; bilateral inferior
neural frontal recess encroachment, and abutment of the exiting L5 nerve root bilaterally;
desiccation of L4-L5 and L5-S1 disc; a broad-based disc displacement at L2-L3, but no

1
Mr. Gwinn is represented Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
Chase is represented by Jane Ann Pancake, Esq., and Jeffrey B. Brannon, Esq.
.

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evidence of additional disc herniation or central canal stenosis; and no evidence of marrow
replacing process or macro fracture. On November 13, 2015, the claim administrator issued
an order identifying the compensable diagnoses in this claim as a left ankle sprain, left knee
sprain, left hip sprain, left wrist sprain, unspecified head injury, lumbar sprain/strain, and
L5 radiculopathy.

On November 24, 2015, Mr. Gwinn underwent EMG/NCV testing revealing an
abnormal study with electrophysiologic evidence for active S1 radiculopathy on the left; a
deep lesion of the peroneal nerves bilaterally, which was noted to be common and clinically
insignificant; and no evidence for peripheral polyneuropathy or lumbosacral radiculopathy
on the right. Mr. Gwinn was evaluated by Brian Yee, M.D., on August 25, 2016, for
complaints of low back pain that radiated down the left leg to his foot. Dr. Yee reviewed
the MRI and EMG, and he assessed lumbar sprain, lumbar disc degeneration, lumbar
spondylosis, and lumbar radiculopathy. Dr. Yee recommended a transforaminal epidural
steroid injection on the left.

A lumbar MRI was performed on January 9, 2018. The impression was: 1. Bilateral
L5 spondylolysis with 1 cm anterior spondylolisthesis of L5 on S1; 2. Bilateral foraminal
encroachment at L5-S1 related to a multiplicity of factors; and 3. Mild bilateral inferior
foraminal encroachment at L4-5 related to disc bulge and facet arthropathy.

Prasadarao Mukkamala, M.D., evaluated Mr. Gwinn on October 30, 2020. Dr.
Mukkamala found that Mr. Gwinn had reached MMI from the lumbar sprain and did not
require any further treatment other than a continuation of a home exercise program. Dr.
Mukkamala opined that there was no indication for surgery.

On January 4, 2021, Mr. Gwinn was seen by Dr. Patel, and he reported that his
condition in the low back was getting worse with time. Dr. Patel assessed spondylolisthesis
L5-S1; lumbar sprain; neural foraminal narrowing bilateral L5-S1; spondylolysis bilateral
L5; left L5 radiculopathy; and lumbar disc protrusion L5-S1.

Dr. Patel authored a letter dated June 28, 2021, in which he noted that Mr. Gwinn
injured his lower back, left leg, and hip area at work on July 16, 2015, and had significant
discomfort in his lower back, and his left leg. Dr. Patel noted that the lumbar MRIs showed
bilateral pars defects, as well as spondylolisthesis L5-S1 with instability, and the EMG
revealed an active radiculopathy of S1 on the left consistent with Mr. Gwinn’s leg pain
symptoms. Dr. Patel opined that the spondylolysis and spondylolisthesis were likely pre-
existing, but the compensable injury caused them to become symptomatic. Dr. Patel
recommended lumbar fusion at L5-S1 for the treatment of radiculopathy, which he opined
was caused by the compensable injury. Dr. Patel explained that he initially recommended
conservative treatment and an aggressive weight loss regimen. However, Dr. Patel opined
that surgical intervention at this point was reasonable as Mr. Gwinn continued to have

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severe limitations in his lower back, and left leg, which he had been having consistently
since his compensable injury.

On September 22, 2021, ChuanFang Jin, M.D., evaluated Mr. Gwinn. Dr. Jin
diagnosed status post fall with multiple sprains/strains involving several body parts,
chronic low back pain with sprain/strain type injury of the lumbar spine superimposed on
preexisting degenerative lumbar spine disease with preexisting spondylolisthesis at left L5
over S1; and left L5 radiculopathy, most likely from preexisting degenerative lumbar spine
disease; and preexisting spondylolisthesis. Dr. Jin opined that from a medical perspective,
the underlying pathology for radiculopathy and sciatica were preexisting and degenerative
conditions, including spondylolisthesis. She further opined that the fall did not cause
spondylolisthesis, although it could have triggered the radiculopathy symptoms. According
to Dr. Jin, a one-time fall would not cause or accelerate the degenerative process or
aggravate or alter the underlying pathologies. As such, she concluded that Mr. Gwinn’s
worsening symptoms were the direct result of the disease progression of preexisting
conditions. Dr. Jin stated that the treatments requested by Dr. Patel, such as injections,
physical therapy, and surgery, were for preexisting degenerative lumbar spine disease and
spondylolisthesis and were not caused by or causally related to the compensable injury. Dr.
Jin opined that it was reasonable to treat the radiculopathy symptoms but not the continuing
progression of preexisting conditions that were not caused by the fall.

The Office of Judges issued a Decision dated June 1, 2022, which affirmed the
Claim Administrator’s Orders dated November 3, 2020, denying anterior spinal fusion at
L5-S1, posterior lumbar fusion at L5-S1, laminotomy/laminectomy at L5-S1, outside
foraminotomy at L5-S1, and posterior instrumentation at L5-S1; January 28, 2021, which
denied temporary total disability benefits; and January 28, 2021, which denied physical
therapy. The Board of Review issued an Order dated October 26, 2022, which affirmed the
Office of Judges’ Decision dated June 1, 2022. The Intermediate Court of Appeals issued
a Memorandum Decision dated February 2, 2023, which affirmed the Board of Review’s
Order dated October 26, 2022.

Mr. Gwinn followed up with Dr. Patel on October 16, 2023. Mr. Gwinn reported
that his lower back was essentially unchanged since the last visit; he had moderate to severe
pain depending on activities and 50% was back pain with 50% leg pain. Dr. Patel stated
that he believed epidural injections would help his radiculopathy and it should be
authorized considering that radiculopathy was found to be compensable.

On January 9, 2024, the claim administrator issued an order that denied
examinations with Dr. Patel on the following dates: January 4, 2021; June 21, 2021; August
30, 2021; October 27, 2021; October 31, 2022; and October 16, 2023; and denied an x-ray
of the lumbar spine performed on October 31, 2022, on the basis that the treatment and

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testing was not necessary treatment related to the approved diagnoses of lumbar sprain and
lumbar spasm.

On September 4, 2024, the Board reversed the claim administrator’s orders denying
examinations with Dr. Patel on January 4, 2021, June 21, 2021, August 30, 2021, October
27, 2021, October 31, 2022, and October 16, 2023; and denying an x-ray of the lumbar
spine. The Board found that Mr. Gwinn established that the treatment visits with Dr. Patel
and a lumbar spine x-ray are medically related and reasonably required treatment for
compensable conditions in the claim. Chase now appeals the Board’s order.2

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:

(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or

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In prior litigation in this claim, the Office of Judges, Board, and this Court had
affirmed the claim administrator’s orders that denied lumbar spinal fusion, physical
therapy, and temporary total disability benefits. See Gwinn v. JP Morgan Chase, No. 23-
172, 2024 WL 4767011 (W. Va. Nov. 13, 2024) (memorandum decision).

Subsequent to the filing of the instant appeal, on November 13, 2024, the Supreme
Court of Appeals of West Virginia (“SCAWV”) issued a memorandum decision reversing
this Court’s memorandum decision dated February 2, 2023, which affirmed the Board’s
decision. The SCAWV reversed and remanded the claim to the Board with directions to
grant Mr. Gwinn’s request for lumber anterior spinal fusion and physical therapy following
the surgery, as well as temporary total disability benefits; and the January 28, 2021,
decision, which denied physical therapy.

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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

Chase argues that the scope of treatment allowed by the Code of State Rules § 85-
20 (2006) (“Rule 20”) for the compensable conditions has been exceeded in this case.
Chase further argues that the conditions Dr. Patel is treating Mr. Gwinn for are
noncompensable, thus, the visits should not be covered. We disagree.

The claim administrator must provide a claimant with medically related and
reasonably necessary treatment for a compensable injury. See West Virginia Code § 23-4-
3 (2005) and West Virginia Code of State Rules § 85-20 (2006).

Here, the Board determined that the medical evidence establishes that the requested
office visits with Dr. Patel and x-ray of the lumbar spine are reasonable and necessary
treatments for the compensable conditions. The Board noted that Dr. Patel has treated Mr.
Gwinn for his back injury since at least January 4, 2021, at which time Dr. Patel noted that
his condition in the low back was getting worse with time. The Board further noted that
Dr. Patel’s assessment of Mr. Gwinn included the compensable conditions of lumbar sprain
and left L5 radiculopathy, and that Dr. Patel continued to treat Mr. Gwinn for the same
diagnoses and lumbar symptoms through October 16, 2023, and specifically during the
total of six office visits at issue over that period of time.

Much of Chase’s argument is based on the theory that Dr. Patel is treating Mr.
Gwinn for noncompensable conditions. Chase specifically argues that the surgery Dr. Patel
requested is for a noncompensable condition, thus, the office visits are to treat
noncompensable conditions. Given the SCAWV’s November 13, 2024, memorandum
decision in this claim holding that the spinal surgery recommended by Dr. Patel is
reasonable and necessary treatment for the compensable conditions, we find no merit in
this line of argument.

We also find no merit in Chase’s argument that the scope of treatment allowed by
Rule 20 has been exceeded in this case. C.S.R. §85-20-4.1 provides that “The provisions
of this Rule are not intended to strictly dictate results, and it is recognized that there may
be extraordinary cases that require treatments in addition to the treatments set forth in this
Rule.” Further, again, given the SCAWV’s November 13, 2024, memorandum decision in
this claim that found the spinal surgery recommended by Dr. Patel to be reasonable and
necessary treatment for the compensable conditions, we conclude that the requested office
visits with Dr. Patel and x-ray of the lumbar spine are also reasonable and necessary for
treatment of the compensable conditions.

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Upon review, we conclude that the Board was not clearly wrong in finding that the
medical evidence establishes that the requested visits with Dr. Patel and a lumbar spine x-
ray were medically related and reasonably required treatment for compensable conditions
in the claim. As the SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and
capricious’ standards of review are deferential ones which presume an agency’s actions are
valid as long as the decision is supported by substantial evidence or by a rational basis.”
Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential
standard of review in mind, we cannot conclude that the Board was clearly wrong in
reversing the claim administrator’s orders denying examinations with Dr. Patel on January
4, 2021, June 21, 2021, August 30, 2021, October 27, 2021, October 31, 2022, and October
16, 2023; and denying an x-ray of the lumbar spine.

Accordingly, we affirm the Board’s September 4, 2024, order.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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